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Legal duties are created by society for any sort of reason that seems good to society. Thus, where a harmful act has been done by the defendant with resulting profit to himself, the law can declare that these facts shall operate to create either a duty in the defendant to make good to the plaintiff for all the damage suffered by him or a duty in the defendant to restore to the plaintiff the amount of the profit wrongfully received by the defendant. Both of these alternative duties are secondary, remedial duties, created to redress the wrong done by a tortious act. The first is the duty that is enforced in the more common of tort actions like trespass and case. The second has come to be called a quasi-contractual duty, chiefly because the form of action in which it was recognized and enforced was assumpsit; by the use of fiction -- so common in the growth of our law-the tort was said to be waived and a contract to be implied by the law. The use of the language of fiction, such as this, might well be expected to result in error aid confusion. Such a result is made almost certain by the prevailing ignorance of the history and character of the common-law forms of action and by the failure to make an analysis of such a complex legal concept as "contract" into simpler and more fundamental concepts.
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